ABDULRAHIM FUNUMULLA Vs. SARAFALLI MAHAMADALLI

JUDGEMENT

(1.) The land in suit belonged to the defendant No. l's father, Funumulla, who leased it to the plaintiff on April 2, 1892, for a period of twenty-five years up to the last day of Falgun, Shake 1839, corresponding to April 11, 1918. Defendant No. 1 mortgaged the land to defendant No. 2 on January 23, 1922. The plaintiff alleged an oral agreement between him and the defendant No. 1 by which he secured a lease for fifty-one years on a rental of Rs, 300. Plaintiff, therefore, brought this suit for specific performance of the oral agreement for a lease for fifty-one years, and in the alternative for a declaration that he was entitled to remain in possession so long as he pleased on the payment of Rs. 100 as rent. Both the Courts have found that the oral agreement with regard to the lease of fifty-one years is not proved The only question arising in these appeal is as to the construction of the lease, Exhibit 67. It is urged on behalf of the defendant that the lease is only for a period of twenty-five years. On the other hand it is urged that the lease is to continue after the period of twenty-five years during the lifetime of the plaintiff's firm. It was never contended in any of the lower Courts that the lease being granted for a building purpose was a permanent lease. If the subsequent conduct of the parties can be taken into consideration, according to the ruling in Tools Pershad Singh V/s. Rajah Ram Namin Singh (1888) L.R. 12 I.A. 205 it would appear that after the expiry of the lease of twenty-five years the plaintiff paid to the defendant an amount of Ks. 1,158 on account of payment of rent to the defendant. There is also the promissory note, Exhibit 97, passed by the defendant on November 16, 1919, in which the amount borrowed is said to have been taken in part payment of the prospective rent. If the subsequent conduct of the parties be taken into consideration, it would follow that the lease did not come to an end at the expiry of twenty-five years. On the other hand the agreement set up by the plaintiff for fifty-one years on a rental of Rs. 300 is inconsistent with the supposition that the lease was a permanent lease. If, however, the subsequent conduct of the parties be excluded from consideration, and the question is considered simply on the terms of the document, we agree with the view of the lower Court that the lease was for a period of twenty-five years certain, and that after the period of twenty-five years the lessee, the plaintiff, was to remain in possession so long as he paid rent, and could not be ousted from the possession of the property if he paid the rent regularly. It is urged on behalf of the defendant, relying on the case in Manicka V/s. Ghinnappa (1912) I.L.R. 36 Mad. 557, that the lease by which the lessees were to hold for such time as they wished, was a tenancy at the will of the lessee which in law was a tenancy at the will of the lesser also. In the present case the lease was for a period of twenty-five years after which the lessee was to remain in possession so long as he paid the rent. The lease in the present case, therefore, represents a transaction where there was a lease for a particular period after which an option was given to the lessee to continue in possession on payment of rent. Such an option, if expressly given to the lessee, ought to ensure for his benefit, and the principle of reciprocity or mutuality cannot be invoked in such a case. The decision in Manicka V/s. Chinnappa (1912) I.L.R. 36 Mad. 557. is quite contrary to the ruling of this Court in Vaman Shripad V/s. Maki (1879) I.L.R. 4 Bom. 424 which follows the earlier decisions in Gopalrav Vithal Deshpande V/s. Bhavanrav Nagnath Mutaliki (1874) P.J. 279 and Suleman Abraham Moredhav V/s. Asmad leap was Dathra (1877) P.J. 177. It was held in those cases that where the lessee was to remain in possession so long as he pleased or so long as he paid rent, the lease was to ensure during the his time or the lessee. termination of the lease was dependent upon the will of the lessee, and the exercise of the will by the lessee terminated on his death, and, therefore, it was held in those cases that the lease lasted till the lifetime of the lessee. In a sub-sequent case in Bai Sona V/s. Bai Hiragmri it was held that the benefit of such an agreement could also be taken advantage of by the heirs of the lessee under Section 108, Clause (j), of the Transfer of Property Act. The case in Vaman Shripad v. Maki (1879) I.L.R. 4 Bom. 424 was dissented from in Bui Sona V/s. Bai Hiragavri . It was not contended in this case in the lower Court that the lease was a permanent lease, and it could not be so contended if regard is had to the subsequent conduct of the parties and the character of the siuit. It is not, therefore, necessary to consider whether the ruling in Vaman Shripad V/s. Alaki, or the conflicting decision in Bai Sona V/s. Bai Hiragavri should govern the facts of the present case. We have to consider in this case whether the lease expired to the end of twenty-five years or continued after the expiry of twenty-five years during the lifetime either of the lessee or the firm of which the lessee was the manager. The lease at one place recites that it is to continue for twenty-five years and "only for twenty-five years the ownership is yours." In another portion of the lease it is stipulated that "after the expiration of the (period of the) Karar, when you will vacate the field of your own will, on that day we shall take (the same) into our possession. After the period of the Karar we shall go on taking the said rent as long as the field will remain (in your possession)." It is further agreed that "on the day on which you will hand over the field into our possession, on that day you should remove the building of your Karkhana and we shall take the field and the repaired well into our possession, Till then the ownership of the field is yours." It appears clear from these stipulations that the lease was not to expire at the end of twenty-five years, but the lessee was to remain in possession so long as he pleased and so, long as he paid the rent. Following the decisions in the cases of Vaman Shripad V/s. Maki and F W. Higgins V/s. Nobin Chunder Sen (1907) 11 C.W.N. 809 we think that the lease was for a period of twenty-five years, and after the expiry of the lease the lessee was to continue A.C.J. in possession as long as he paid the rent, that is, it was to ensure 1928 during the lifetime of the lessee. On behalf of the plaintiff it is urged that the lease was to ensure after the period of twenty-five Abdu rah1m years till the firm lasted. No authority has been cited in support of that contention. The will of the firm could only be exercised by the manager, in whose name the lease was passed. It would, therefore, follow that the lease would last till the manager was capable of exercising the will, and would last till his lifetime. On behalf of the defendant reference was made to the case of Secretary of State V/s. Bai Rajbai . In that case there was no option given to the lessees, and the only agreement in Clause 10 was that they were to retain during the pleasure of Government nine of the villages found under their management when the Pargana fell into their possession. The option given there was in favour of the lesser, and the principle of reciprocity or mutuality was not urged in that case, and was negatived by the judgment. Reference was made to the case of Wood V/s. Beard (1876) 2 Ex. D. 30. In that case the duration of the lease was made dependent on the leaser's power of letting, and it was held that the lease was void for uncertainty. But a lease for life even under the English law could be created where there is an agreement to pay rent as long as the tenant paid it regularly. Reference may be made to paragraph 931 of Halsbury's Laws of England, Vol. XVIII, where it is stated:- Consequently, if it is of such a nature that the Court would order specific performance, the lessee can obtain the grant of an effectual lease, or, without this being done, the informal lease is, for the purpose of any question arising in a Court which has jurisdiction to order specific performance, equivalent bo a lease by deed. Cases of this kind court when a landlord lets a house and agrees not to raise the rent as long as the tenant paya it regularly. Provided that the agreement is in writing, it operates as an agreement to lease for the life of the tenant, subject to regular payment of rent, and, for most purposes, is equivalent to a formal lease by deed for the tenant's life.

(2.) I may here refer in this connection to the decision of the Privy Council in 8m, Nayan Mwnjari Dasi V/s. Khagendra Nath Das (1927) 31 C.W.N. 700 p.c. where a dispute between a landlord and his tenant was settled by a compromise which granted the land to the tenant at a fixed rent for seven years and contained a stipulation that after that he was to enjoy the land on payment of the then reasonable ground rent, and the landlord, after once enhancing the rent, demanded a second enhancement, and on the tenant's failure to pay sued for adjustment, it was held that the lease was binding so long as the tenants were willing to pay the prevailing We think, therefore, that the view taken by the lower Court is correct, and both the appeals should be dismissed with costs. Baker, J.

(3.) I agree, and have nothing to add.